Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. The First Amendment
It’s highly significant that the Establishment Clause launches the very first amendment to our Constitution. While most of the Founders believed in God and were personally affiliated they wanted it clearly understood that the United States is not a “religious country” — it has no state religion. So, contrary to the claims of some of today’s conservatives, this is not a Christian nation and never was. The founders may have been overwhelmingly Christian, but they separated their personal affiliations from the secular state. To use a contemporary analogy, that founder Mark Zukerberg is Jewish does not make Facebook a Jewish company.
In his 1802 letter to the Danbury Baptists, Jefferson reaffirmed their intention by pointing to a “wall of separation between church and state”. Ever since, that wall has been the source of ongoing contention, challenge and often-purposeful distortion. Indeed, over the years defining what Jefferson meant by “a wall” has repeatedly been to sail murky waters — is it solid, does it have doors or it is made entirely out of cheesecloth? How we respond, is often governed by who we are and what we might believe — what we’d like it to mean. So it’s unsurprising that the Supreme Court’s landmark marriage decision was met with talk of religious freedom and, by extension, church/state separation.
While a recent CNN/ORC poll suggests 63% of Americans overall (73% under 50) favor marriage equality, about one third still oppose it. Many of those opponents are unlikely to change their view. That’s because it reflects their strong held religious beliefs rather than any opposition to institutional change per se. They see marriage between a man and woman as dictated by God, not subject to amendment. That opposition cuts across faiths coming mostly from the more orthodox or fundamentalist side whether Jewish, Christian or Muslim. Regardless of what next steps they take to thwart the decision may be, their challenges are are likely to be based on religious arguments, ones that question, if not the Establishment Clause, then certainly its interpretation. For many on the right, the Court has crossed a divinely drawn line.
In this disturbingly early presidential election cycle, the decision is having an immediate political impact. And it again divides the parties. Polls suggest that a majority of Republicans at large, though in smaller numbers, support marriage equality. Not so for the party’s hard core primary voting base. This poses a huge problem/dilemma for the candidates, especially for the few who are modestly less hard right. In the face of a primary where socially conservative voters loom large, most of the contenders, even the few who grudgingly accept the decision as final, publically lament it. Several want a Constitutional Amendment that would cede authority to the states. The chances of that happening are probably less than zero — we can’t seem to get even ordinary bills through the Congress. But leaving aside the difficulty of amending our Federal Constitution, history is on the side the Court’s majority, especially for those under fifty who will be running things in the near future.
Tactically, resting their case on religious freedom is a natural argument. After all who can be against religious freedom? One of the most critical questions posed in that regard is who is required to issue a marriage license or to act as officiant at a same-sex wedding? In this, those who want to distort church-state separation happily conflate the role of government officials with that of the clergy. Of course, in signing marriage certificates, clergy do act as nominal in-the-moment state agents, but significantly they can’t initiate the license. Their agent role ends at the “church” door. The First Amendment protects clergy as religious functionaries. In their “house”, religious practice and teachings prevail and supersede secular considerations. Many rabbis, even liberal ones, will not officiate at a religiously mixed marriage and priests may not bless a remarriage of the divorced. Whether, and if so how, similar religious freedom pertains to taxpayer employed clerks and magistrates carrying out their public chores may be the subject of future litigation. It certainly is already being tested.
Justice Kennedy assumed as much and incorporated language relating to religious freedom in his opinion. He wrote:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered… The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”
From the start, marriage equality opponents based their primary argument on religious grounds. At another time that might, and likely would, have prevailed. Today even the religious view is split with fundamentalists holding absolutist views on what they brand “traditional marriage” while a now majority supports change, a redefinition. Liberal clergy have been among the first to support equality and to officiate over such unions. Perhaps more important in the long run is that, despite claims to the contrary, religion and its influence on personal decisions is in decline, especially in the West. That is likely to impact on future public policy. The widely popular Pope Francis is visiting South America where his once overwhelmingly dominant church is facing the same empty pew problem that challenges all but a few churches here. One third of American Millennials have left religion behind.
Back in the days of Ronald Reagan activist social conservatives emerged as a significant power on the American political scene. Much of the homage to God and faith still heard in our public square can be attributed to that time, but much of it has now become merely lip service paid. Certainly, many of the listeners and not only the young, hear it that way. “God bless the United…” has become a pro-forma conclusion to presidential and other political speeches. In the second decade of this century, the invocation of God or the attribution of public policy to divine-will just doesn’t fly the way it once did. Assumptions are being challenged and questions are being asked. Beyond the obvious civil rights issues at hand in the marriage decision, I’m sure the Justices were acutely aware of that shift.
And it is a shift that is posing a real challenge to the Republican hopefuls. Without exception, they seem behind the curve, unaware of that bending “arc” to which Martin Luther King, Jr. liked to point. They find themselves on the wrong side of the marriage issue in and of itself but also because “it’s the traditional way” is tied to religion. The fact is that even among those identify as religious, many and probably the majority, say, “opposition to marriage equality is not my religion, not my belief”. In what seems like an act of desperation, a few on the right now suggest Christianity and Christians are being persecuted. Most of us know, nothing could be more patently absurd. And marriage is their only problem. The ACA, a now seemingly settled issue, continues to be in their crosshairs. That’s a losing proposition because history tells us that Americans are loath to give up benefits (or even potential benefits). Once experienced, they quickly transform themselves into a birthright — think Medicare. Finally, there is The Donald and his nativist comments about Mexicans. Even the few candidates like Jeb! and Mike Huckabee who criticized them, did so days after the fact. Most of the others remain silent; some support if not the words, then the sentiment. Hostility toward immigration reform, close to the heart of Latinos (who are now a majority in California), will not be a plus for the GOP.
It may be that today’s huge class of GOP candidates just aren’t seasoned enough. Few have played on the national stage of presidential politics. But in running for president, lack of experience is not easily excused. The eventual nominee will have to explain both their primary rhetoric and silences along with the positions they espouse when they move on to the general election. In the era of social media and fact checking the luxury of amnesia is something of the past. The marriage equality decision, among the most liberal of the Roberts years, reflected where the country is headed. That probably cannot be said for most of the Roberts Court’s decade long conservative decisions. The Court won’t be on the ballot, but its future and ours will certainly be a stake in November 2016. Republicans have much explaining to do. Among the issues at hand will be how we all perceive religious liberty and the separation of church and state in a changing landscape.